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January 3, 1996

MARK D. WALDEMER, Petitioner,

The opinion of the court was delivered by: MIHM

 This matter comes before the Court upon Petitioner's Motion for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. Mark D. Waldemer was convicted after trial on one count (Count 12) of making a false statement. United States v. Waldemer, Case No. 92-30111. This Court sentenced him to five months in prison, to be followed by five months of home detention. He appealed his conviction to the Seventh Circuit Court of Appeals. His conviction was affirmed. See United States v. Waldemer, 50 F.3d 1379 (7th Cir.), cert. denied, 132 L. Ed. 2d 845, 115 S. Ct. 2598, reh'g denied, 132 L. Ed. 2d 909, 116 S. Ct. 27 (1995).

 In this habeas petition, Waldemer raises a large number of assertions regarding the appropriateness of his conviction. Some of those assertions fail because they were raised on direct review and were decided by the Court of Appeals. Several other assertions are procedurally barred because Waldemer failed to raise those issues on direct review and he has failed to establish necessary cause and prejudice, and no fundamental miscarriage of justice is involved. Waldemer's claims of ineffective assistance of trial counsel and appellate counsel are either barred and/or without merit.

 Waldemer's most serious claim for consideration in this Order is the assertion that the case of United States v. Gaudin, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995), compels a new trial. Gaudin announced a new rule of law that the issue of materiality in perjury and false statement cases is an element of the offense which must be presented to the jury for determination. Waldemer's reliance on Gaudin, while timely, also fails because this Court's failure to present the issue of materiality to the jury was not plain error and was harmless error.

 After reading the briefs and listening to the oral arguments in the case for this Petition, the Court concludes that there is no need for an evidentiary hearing on the issues presented. "The record conclusively demonstrates that the petitioner is not entitled to relief." Barker v. United States, 7 F.3d 629, 633 n.3 (7th Cir. 1993), cert. denied, 127 L. Ed. 2d 229, 114 S. Ct. 939 (1994).

 Individual Claims for Habeas Relief

 A. Issues Raised on Direct Review

 1. Petitioner claims (Habeas Corpus Petition ("H.C.") at 16-19) that the evidence at trial did not sufficiently establish the elements of "knowledge" and "falsity" for the offense charged. This claim was considered and rejected at the trial stage and further raised in the appellate brief on direct review to the Seventh Circuit (see Government's Exhibit to Government's Response to the Petitioner's Motion for Habeas Corpus ("GX.") 1 at 48). The Seventh Circuit held that the evidence was sufficient to support the conviction. Waldemer, 50 F.3d at 1388-89. The Seventh Circuit's ruling on this issue is the law of the case and may not be relitigated in this habeas petition. See Norris v. United States, 687 F.2d 899, 900 (7th Cir. 1982).

 2. Petitioner claims (H.C. at 12-13) that the Government improperly applied 29 U.S.C. § 481(g), thereby leading the Court to incorrectly instruct the jury. This claim was fully and fairly litigated in the trial court and rejected by the giving of Instruction No. 10, which stated:

Under federal law, it is improper for a union official to accept any union campaign contributions from any employer. Specifically, federal law provides that no monies of an employer shall be contributed or applied to promote the candidacy of any person in an election. This law applies even where the contribution may have been minimal.
I want to caution you that the defendant is not charged in this indictment with receiving improper payments of union campaign expenses. I want to instruct you that you may only consider this instruction in determining the defendant's intent and state of mind in answering questions before the grand jury.

 Tr. V-3, p. 145. Petitioner raised the same issue in his appellate brief on direct review to the Seventh Circuit (GX. 1 at 34-36). The argument was rejected by the Seventh Circuit. Waldemer, 50 F.3d at 1386-88. See Norris, supra.

 3. Petitioner asserts (H.C. at 14) that the prosecutor improperly commented on Petitioner's failure to testify at trial, thereby infringing upon Petitioner's Fifth Amendment right against self-incrimination. This argument was made in the appellate court (GX. 1 at 42-44). The Seventh Circuit found no error. Waldemer, 50 F.3d at 1385. See Norris, supra.

 4. Petitioner claims (H.C. at 14-15) that the jury rendered a verdict without the Court having made a finding of the element of "materiality" under 18 U.S.C. § 1623. The question of materiality was fully and fairly litigated in this case. This Court denied a motion to dismiss on this ground on two occasions prior to trial. During the course of trial, the issue of materiality arose during discussions about jury instructions. During that discussion on jury instructions, the Court made the following observation:

THE COURT: It's my view since it is the Seventh Circuit's position that [materiality] is something to be ruled on by the Court and the defense has -- there's no indication either in opening statement or in any of the questioning in this case that the defense has made or will make any effort to argue his answers were immaterial then I'm going to go with 14B.

 Tr. V-III, p. 92. Instruction No. 14B was the elements instruction telling the jury what they must find in order to return a verdict of guilty on the charge of perjury. The 14B alternative did not include the element of materiality since the Court believed that was a question of law for the Court to decide. While the Court did not explicitly make a finding of materiality in this case, and should have done so, it is painfully clear by the approval of the jury instruction and the discussion of this matter that occurred during the jury instructions conference that the Court did, in effect, make a finding of materiality. The issue of materiality was raised on direct appeal, and the Seventh Circuit explicitly found the existence of materiality. Waldemer, 50 F.3d at 1382-83. See Norris, supra.

 B. Issues Not Raised on Direct Review

 1. Petitioner argues (H.C. at 14; M.H.C. at 19-25) that the Government failed to specify in the indictment to what union office within the Brotherhood of Locomotive Engineers ("BLE") Petitioner's employer was alleged to have made the contribution in the form of reimbursement and, as a result, Petitioner was deprived of his right to prepare an adequate defense. The facts underlying this issue were clear to the Petitioner at the time of the appeal since they relate solely to matters surrounding the trial record, and he failed to raise this issue before the Seventh Circuit. By his failure to raise this issue, the appellate court was deprived of the opportunity to correct the error, if it was error. Petitioner is now procedurally barred from presenting the issue in his habeas petition. Petitioner has given no explanation as to why the issue was not raised on direct review. Without such a showing of cause, the Court cannot properly consider the claim. Wainwright v. Sykes, 433 U.S. 72, 89, 97 S. Ct. 2497, 2508, 53 L. Ed. 2d 594 (1977).

 There is also no prejudice involved in this claim. Id. The four questions which were put to the Petitioner in the grand jury proceeding did not specify any particular office in regard to which the payments were made. Consequently, what the Government needed to prove was that the Petitioner received reimbursement for any union campaign expenses and then falsely testified before the grand jury that he had not received reimbursement for union campaign expenses.

 2. Petitioner alleges (H.C. at 15) that the trial court constructively amended the indictment by dismissing the "General Allegations" section of the indictment, including all references to the BLE, thereby permitting a conviction based on monies reimbursed to Petitioner for conducting the law firm's business rather than monies reimbursed to Petitioner for conducting BLE's business. These matters clearly could have been and should have been raised at the time of trial since they relate to matters surrounding the indictment and what the jury was told concerning the indictment at the time of trial. There was no objection regarding this matter at trial. While the Court cannot find a specific reference to this in the trial record, it is the Court's recollection that defense counsel was not eager to have the jury hear all of the "General Allegations" contained at the beginning of the indictment and was quite content to have the Court merely refer to the specific wording contained in Count 12. Petitioner failed to raise this issue before the Seventh Circuit and is now procedurally barred from presenting the issue in his habeas. In any event, the claim is without merit. By not reading the "General Allegations" section of the indictment, the Court, at worst, narrowed the language of the indictment. This is not a fatal variance. United States v. Miller, 471 U.S. 130, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985). The Court views the "General Allegations" contained at the beginning of the indictment as unnecessary to and independent of the specific allegations contained in Count 12 and, consequently, that they constituted the type of surplusage which can be omitted. Miller, 471 U.S. at 136.

 It is clear from reading Count 12 that its wording was internally complete and not legally dependent on the "General Allegations":

Count Twelve
(18 U.S.C. § 1623-False Declaration Before Grand Jury)
The Grand Jury Further Charges:
2. At the time and place aforesaid the grand jury was conducting an investigation to determine whether violations of Title 18, United States Code, Sections 1341, 1343, 1346 and 1952 had been committed, and to identify the persons who had committed, caused the commission of, and conspired to commit such violations. It was material to the said investigation that the grand jury ascertain if STEPHEN TILLERY or the law firm of Kassly, Bone, Becker, Dix, Tillery & Reagan (hereinafter, "Kassly, Bone law firm") ever paid union campaign and union business expenses of defendant WALDEMER.
3. At the time and place alleged, defendant WALDEMER appearing as a witness under oath at the proceeding before the grand jury knowingly made the following declarations in response to questions with respect to the material matter alleged in paragraph two as follows:
"Q. When you were with the firm [Kassly, Bone], did they pay any campaign expenses to you while you were an employee there?
A. No, sir."
* * * *
"Q. To your knowledge, did they ever pay for any union business expenses while you were employed ...

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